The opinion of the court was delivered by: SCHOONMAKER
This case is now before the court on the motion of intervenor, Fort Pitt Hotel, Inc. (hereinafter referred to as "Fort Pitt"), cross-complainant, against Pittsburgh Hotels, Inc. (hereinafter referred to as "Pittsburgh"), and Peoples-Pittsburgh Trust Company (hereinafter referred to as "Indenture Trustee"), trustee under a mortgage indenture given by "Pittsburgh" to "Indenture Trustee", for summary judgment for the relief asked for in its cross-complaint filed in this case, i.e., the conveyance to "Fort Pitt" of a fee-simple title to Fort Pitt Hotel premises, free and clear of all liens and encumbrances, including all matters raised by the plaintiff in his complaint herein.
"Pittsburgh" and the "Indenture Trustee" are not resisting this motion. But the plaintiff is asking that the court enjoin defendants from consummating the sale of the Fort Pitt property during the pendency of this action; that the $50,000 paid on the purchase price thereof and added to the working capital of "Pittsburgh" be forthwith turned over to the "Indenture Trustee." The plaintiff also asks for other relief not pertinent to the issue now before the court on the motion for summary judgment.
In connection with the motion for summary judgment, "Fort Pitt", "Pittsburgh", and the "Indenture Trustee" submitted the sale agreement of the Fort Pitt Hotel property (Exhibit No. 1); supplemental sale agreement dated October 28, 1940 (Exhibit No. 2); mortgage extension agreement of October 28, 1940 (Exhibit No. 3); agreement of October 28, 1940, between "Pittsburgh", "Fort Pitt" and the Mutual Life Insurance Company (Exhibit No. 4); consent of the voting trustees of "Pittsburgh" to the sale to "Fort Pitt" (Exhibit No. 5); resolution of directors of "Pittsburgh" approving sale to "Fort Pitt" (Exhibit No. 6); letter of May 1, 1940, from attorneys for "Pittsburgh" transmitting request for release of Fort Pitt Hotel property from lien of mortgage indenture (Exhibit No. 7); printed copy of mortgage indenture from "Pittsburgh" to the "Indenture Trustee" (Exhibit No. 8); and printed copy of Voting Trust Agreement dated January 1, 1937, between "Pittsburgh" and William H. Donner et al., voting trustees (Exhibit No. 9).
The facts of the case, as disclosed by the pleadings, so far as they relate to matters involved in "Fort Pitt's" motion for summary judgment, may be briefly stated as follows:
The plaintiff is the owner, as trustee, of $2400 face value of five-percent income bonds secured by a mortgage of "Pittsburgh" to the "Indenture Trustee", covering, among other property, the Fort Pitt Hotel property.
"Fort Pitt" intervened in this suit as a purchaser of the Fort Pitt Hotel property, seeking specific performance of its purchase contract for said property.
"Pittsburgh", as the result of reorganization proceedings in this court, emerged as the owner of the William Penn Hotel and the Fort Pitt Hotel properties, and the Fort Pitt Laundry.
"On May 2, 1940, it made an agreement with "Fort Pitt" wherein it agreed to sell, and "Fort Pitt" agreed to buy, the Fort Pitt Hotel property, and its furnishings. The price fixed for the hotel property was $675,000, and for the furnishings, $150,000. The agreement provided that $250,000 was to be paid in installments, of which $150,000 was to be applied to the furnishings, and $100,000 was to be applied on account of the purchase price of the land, which was to be applied by "Pittsburgh" to a first mortgage on the Fort Pitt Hotel property, for the purpose of obtaining a release of said property from the first mortgage on said property, so that the said Fort Pitt Hotel property could be conveyed to "Fort Pitt" free and clear of all encumbrances.
On performance of all the conditions of said contract, including the payment of $250,000 to the "Indenture Trustee", "Pittsburgh" agreed to convey said Fort Pitt Hotel property to "Fort Pitt", free and clear of all liens and encumbrances, and to deliver to "Fort Pitt" a bill of sale for said personal property.
Whereupon, contemporaneously with the delivery of such deed and bill of sale, "Fort Pitt" agreed to execute and deliver to "Pittsburgh" a purchase-money mortgage for $575,000.
By agreement dated October 28, 1940, "Pittsburgh" and "Fort Pitt" entered into an agreement amending its aforesaid sale contract, so as to provide that on payment of $200,000, the conveyance to "Fort Pitt" was to be made, and purchase-money mortgage was to be given.
"Fort Pitt" has complied with the sales agreement, and is now asking for the delivery of a deed for the Fort Pitt Hotel property. The defendants are willing to comply, but for the action by plaintiff.